Probate Question

UE40KU6000

My wife and myself have wills that in the event of the death of one the whole estate is left to the other and we both have named the same executor.

No inheritance would be due

My question is in the event of us both dying at or about the same time (say a fatal car accident) would our executor have to apply for probate for each of us separately (using probate form PA1P) or only once for the person deemed to be the second to have died ( even if only a few minutes between the two deaths?

Keep_pedalling

The probably would need to. Probate may be required on the first death regardless of when the second death occurs. You only need to hold an asset that can’t be released without probate such as a S&Ss ISA or large cash savings. Wills also often have survivorship clauses in them which means your estate does not pass to your spouse if they don’t outlive them by a short period of days. 

Do you only have one executor? 

lisyloo

Most wills have a survivorship clause and I think mine in 28 days which allows for one person to die days after another from the same event.

If these are professionally drawn wills then something like that should be in there.
If not then it would be treated as one after the other.
If assets are held jointly then there wouldn't be a need for probate and pensions may well be outside of the estates.
ISAs of course are individual by their very nature.

UE40KU6000

Yes both wills have survivorship clauses and all main assets are jointly owned. I know that the estate of the first deceased would pass on death to the second but I would like to know how this eventuality affects the applying for probate process and what our executor would need to do. Would they need to apply for probate of the first deceased and then wait a period of time and apply seperately for probate for the second?

pjs493

UE40KU6000 said:

Yes both wills have survivorship clauses and all main assets are jointly owned. I know that the estate of the first deceased would pass on death to the second but I would like to know how this eventuality affects the applying for probate process and what our executor would need to do. Would they need to apply for probate of the first deceased and then wait a period of time and apply seperately for probate for the second?

Who are the secondary beneficiaries? Are they the same in both Wills? Do the Wills name back up executors?

My husband and I had mirror Wills leaving everything to our children if we both died within 28 days of each other. We were also each named as the executor of the other’s Will. 

We also named two additional people who could act if the first executor was unable. In other words, when my husband died, if I was unable or unwilling to act as executor, or died within 28 days of his death, I could have given this power to the two other people named as back ups or they would have automatically have become joint executors if I died within 28 days of my husband. Both our Wills named the same back up executors. 

I don’t know the answer to your question unfortunately. But I suspect Probate would have to be applied for each person. 

If my husband and I died together in a fatal aeroplane crash I’m assuming that the back up executors would come into play and everything would go straight to the children, but the executors would have to apply for Probate twice in order to get Grants of Probate for each of us. If they only applied for Probate for my husband (for example) but I also died, they couldn’t use that Grant of Probate to close my bank accounts and transfer assets that weren’t in joint accounts like my ISA. 

UE40KU6000

Thanks for your comments. The bit I dont understand is if my executor (in this case one of my daughters who are both named as executors has to send two probate application forms, one for myself and one for my wife if we both die within 28 days of each other. How do they complete the part of the probate forms that ask for the value of the estate? Do they say for argument that because all main assets are owned  jointly between my wife and myself that each of the two probate forms would show half of the estates value or maybe each probate form should show the total value (my wifes share and mine together) The estate would pass to our daughters if we both died.

Keep_pedalling

UE40KU6000 said:

Thanks for your comments. The bit I dont understand is if my executor (in this case one of my daughters who are both named as executors has to send two probate application forms, one for myself and one for my wife if we both die within 28 days of each other. How do they complete the part of the probate forms that ask for the value of the estate? Do they say for argument that because all main assets are owned  jointly between my wife and myself that each of the two probate forms would show half of the estates value or maybe each probate form should show the total value (my wifes share and mine together) The estate would pass to our daughters if we both died.

Why do you say one of your daughters? It would be better if they acted as joint executors. 

The survivorship clause does not apply to joint assets so if you own a house as joint tenants it wound be covered.

For example house worth £500k, joint savings account £100k sole savings account £10k each.

Both of you die in an accident together then the oldest is deemed to have died first their estate will be £250k + £50k +£10k = £310k. Probate may not even be required for this estate because the joint assets pass automatically and the sole asset is small. Only £10k NRB has been used as the rest is covered by spousal exemption.

The youngest will be regarded as the sole owner of all the joint assets at the time of death so their estate will be £500k + £100k + £10k = £610k. 

If the house was owned as tenants in common then the share of the first deemed to die would be covered by the survival clause.

Although diving in the same incident complicates things for the executors it does not prevent the executors applying for probate at the same time. If someone dies before receiving an inheritance it is still included in their estate.

UE40KU6000

Many thanks for your advice. It answers my question regarding applying for Probate.